Carlson v. District Court of City and County of Denver

• Decision Date: 28 April 1947
• Docket Number: 15849.
• Citation: 116 Colo. 330,180 P.2d 525
• Parties: CARLSON v. DISTRICT COURT OF CITY AND COUNTY OF DENVER et al.
• Court: Colorado Supreme Court

180 P.2d 525

116 Colo. 330

CARLSON v. DISTRICT COURT OF CITY AND COUNTY OF DENVER et al.

No. 15849.

Supreme Court of Colorado, En Banc.

April 28, 1947

Original prohibition proceeding by J. Norman Carlson against the District Court of City of Denver, State of Colorado, and others, challenging court's jurisdiction in automobile collision case, and seeking to restrain Eugene Fodor from further proceeding in such action.

Writ made permanent.

Wolvington & Wormwood, of Denver, for plaintiff.

A. X Erickson and Don B. Oliver, both of Denver, for defendants.

ALTER Justice.

This is an original proceeding in the nature of prohibition in which J. Norman Carlson challenges the jurisdiction of the district court of the City and County of Denver and Hon. Joseph J. Walsh, Judge of said court, and seeks to restrain Eugene Fodor from further proceeding in an action pending in said court wherein Fodor is plaintiff and Carlson is defendant.

Herein we will refer to Carlson by name or as plaintiff and to Fodor by name or as defendant; the district court and Joseph J. Walsh will be referred to as the court.

The events giving rise to this litigation, according to the record, can best be presented in chronological order.

The summons in the action was issued December 17, 1945. December 18, 1945, plaintiff's attorney wrote the secretary of state as follows:

'I hand you herewith two Summons together with a Complaint thereto attached.

'The defendant is a non-resident and was at the time of the accident. His address is 427 Clinton Avenue North, Rochester, New York. Will you please inform him pursuant to the statutes.

'This service is made as required by the statutes on non-resident defendants.'

December 28, 1945, Fodor docketed a case and filed his complaint in the district court in which he sought to recover from Carlson damages sustained by him in a collision between an automobile operated by Fodor and one driven by Carlson. The pertinent part of paragraph 1 of the complaint reads: 'That on or about the 4th day of December, A.D. 1944, * * * the defendant negligently drove his 1938 Chevrolet coach automobile, containing license No. Illinois, 1944, 285-773, into and against the automobile driven by the plaintiff, who was then driving in the opposite direction of the defendant, to the plaintiff's great injury and damage.'

The record discloses that December 18, 1945, a 'registered article' was sent via air mail to Carlson, who receipted for the same December 21, 1945, and the receipt was returned to plaintiff's attorney. December 13, 1946, a so-called affidavit, subscribed and sworn to by Fodor, was filed in the district court, which, omitting the formal parts, reads as follows:

'1. That the Summons of the within action was issued on or about the 17th day of December, A.D.1945, and that the defendant above named is a non-resident, as will more fully appear from Paragraph I of the Complaint.

'2. That immediately subsequent thereto a Summons, together with a Complaint thereto attached was left with the Secretary of State pursuant to Chapter 16, Section 48, Subsection 1 of the 1935 C.S.A.Supplement, all of which will more fully appear from Exhibits A, B, C, D, and E, hereto attached and made a part hereof; Exhibit A being a registration receipt issued by the United States Post Office Department, Exhibit B being a return receipt, Exhibit C being the numbering card from the Clerk's office of the District Court, Exhibit D being a receipt from the Secretary of State showing the filing of the Summons and Complaint wherein the above named parties are named in the within action and Exhibit E being correspondence concerning which Exhibits A, B, and E were issued.

'3. The defendant has failed to appear in this Court and is therefore in default under authority of the rules of civil procedure, and has been for a long time last past.

'4. That the defendant J. Norman Carlson is not in the military service of the United States or her allies, and that he informed the plaintiff of such fact by correspondence.

'5. That the defendant is not within the jurisdiction of this court as a non-resident within the meaning of the statutes above referred to in Paragraph 2 hereof.

'Wherefore your applicant prays an Order of this Court declaring the defendant in default, the appointment of an attorney pursuant to the Soldiers' and Sailors' Relief Act, and that the within matters stand continued until on or about the 7th day of January A.D.1947 for the taking of evidence and the entry of default judgment.'

December 27, 1946, defendant Carlson entered his special appearance and moved for 'an order quashing, setting aside and holding for naught the alleged and pretended service of summons and the return thereof,' and for grounds of the motion set forth that on December 4, 1944, he was a resident and citizen of Colorado, and, assuming that he was a nonresident on December 4, 1944, yet the court acquired no jurisdiction because of defendant's failure to comply with the mandatory provisions of section 48(1), chapter 16, '35 C.S.A.Supplement, S.L. '37, c. 92; and, further, that on July 18, 1944, he and his wife moved from Illinois to Leadville, Colorado, and resided there and that he was a resident of the state of Colorado thereafter until May 28, 1945, where he was engaged as pastor of the First Evangelical Lutheran Church of Leadville, Colorado; that on May 28, 1945, defendant accepted a pastorate in his church at Rochester, N.Y., and that at the time of the accident, and for months prior thereto and subsequent thereto, defendant was living in and was a resident of the state of Colorado.

This motion was supported by an attached letterhead of the First Evangelical Church at Leadville, Colorado, showing that on December 18, 1944, J. Norman Carlson was its pastor, and also by the affidavits of defendant Carlson and Kenneth M. Wormwood. In the affidavit of Wormwood, he recites: 'That he has known said defendant [J. Norman Carlson] since the accident of December 4, 1944; that from his investigation and from his personal contacts with the defendant he is informed and believes that the said J. Norman Carlson moved to Leadville, Colorado, about July 18, 1944, and became Pastor of the First Evangelical Lutheran Church; that he remained Pastor of that church and was a resident and citizen of the State of Colorado from July 18, 1944 to May 28, 1945; that he was a resident and citizen of the State of Colorado on December 4, 1944.'

Carlson, in his affidavit, states, inter alia:

'That on December 4, 1944, he was a resident and citizen of the State of Colorado; that at said time he was the Pastor of the First Evangelical Lutheran Church of Leadville, Colorado; that he resided at said time at 218 East 9th Street, Leadville, Colorado, his family consisting of his wife and himself.

'That affiant moved from Illinois to Colorado on July 18, 1944, at which time he became a resident and citizen of the State of Colorado, and remained so until May 28, 1945, when he moved from Colorado.

'That at the time of the accident referred to the affiant was riding an automobile which bore an Illinois license, but that the affiant had simply neglected to obtain a Colorado license, which he did shortly thereafter.'

In this state of the record a hearing was held on January 7, 1947 on defendant's motion to quash, set aside and hold for naught the alleged service of summons and return thereof, at the conclusion of which the court entered an order denying the motion and giving defendant twenty days within which to appear. Thereupon plaintiff instituted this proceeding asking for an order in the nature of a writ of prohibition, and a rule to show cause was issued. Proper pleadings and briefs were filed, and the cause is now at issue.

Four questions are presented for our determination: 1. Does the record show that defendant was a nonresident of the state of Colorado? 2. Was there sufficient compliance with the provisions of section 48(1), chapter 16, '35 C.S.A. Supplement S.L. '37, c. 92, to give the court jurisdiction? 3. The record considered, is the question of jurisdiction properly presented by a special appearance and motion to quash? 4. Should this court take jurisdiction?

1. Section 48(1), chapter 16, '35 C.S.A. Supplement, S.L. '37, C. 92, provides in part:

'The operation by a non-resident of a motor vehicle on a public highway in this state shall be deemed equivalent to an appointment by such non-resident of the secretary of state to be his or its true and lawful attorney, upon whom may be served all lawful civil processes in any actions or proceedings against him or it, growing out of any accident or collision in which such non-resident may be involved while operating a motor vehicle on such public highway; and such operation shall be deemed a signification of such agreement that any such process against him or it which is so served shall be of the same legal force and validity as if served on such non-resident personally within the state.

'Service of such process shall be made by leaving a copy of the process, with a fee of two dollars ($2.00) which shall be taxed as part of the costs of the proceeding, with the secretary of state, or in his office, andsuch service shall be sufficient service upon such non-resident defendant who has hereunder appointed the secretary of state his or its true and lawful attorney therefor; provided, that notice of such service and a copy of the process are forthwith sent by registered mail by the plaintiff to the defendant, and the defendant's return receipt or, in the event the defendant refuses to accept such registered mail, the registered mail with his or its refusal thereon and the plaintiff's affidavit of compliance...